Cregg v. Puritan Trust Co.

Pierce, J. This is an action at law brought by the plaintiff as trustee in bankruptcy of Daniel F. McCarthy, Jr., to recover a sum of money which the bankrupt had paid, within four months prior to the filing of the petition in bankruptcy, in part payment of an unmatured note of the bankrupt which was then held by the defendant. It is the claim of the plaintiff that the effect of the payment was a violation of the United States bankruptcy act of 1898, c. 541, § 60 a, b, as amended, in that the defendant obtained a greater precentage of its debt than any other creditor of the bankrupt of the same class, and in that the said transfer then operated as a preference, the defendant and its agents then having reasonable cause to believe that the enforcement of said transfer would effect a preference. ,On motion of the defendant the trial judge ordered a verdict for the defendant. The note upon which a partial payment was made by the bankrupt had been running from November 26,1910. It was originally for $10,000, and had been renewed every six months, the last renewal being on November 29, 1915. The debt of the original note reduced by successive payments was $6,500 on November 29,1915, and the renewal note of that date called for the payment of that sum on May 29,1916. On April 11, 1916, the bankrupt made the payment in question at the note window of the defendant bank. He made no explanation to the defendant whatever of the payment on account before the maturity of the note, did not know whom he saw at the window, and did not make any statement as to when the rest of the note would be paid The bankrupt lived and carried on business in Lawrence, while the defendant bank was located and carried on its business in Boston. There was evidence that a fire had occurred in the bankrupt’s place of business on February 28, 1916; that on April 11, 1916, he was behind in his bills and was receiving demands from creditors for payments which were not made; that drafts of [149] considerable size had been made on -him through his bank, the Merchants Trust Company at Lawrence; that they were unpaid; that his account at the Merchants Trust Company had been transferred to the name of his father as his agent; that his assets before the payment on the note to the defendant on April 11,1916, were worth in stock and trade $750 and $5,000 in cash; and that his liabilities were $11,500. There was no evidence that the defendant had knowledge of the fire, of the assets and liabilities of the bankrupt or of any of the foregoing facts other than attendant upon the receipt of the payment. It also was in evidence that the payment to the defendant was made with a check signed by the agent of the bankrupt drawn on the Merchants Trust Company. The fact that the note was partially paid before it was due, the fact that the payment on account was larger than the sum of all other previous partial payments, and the fact that the payment was made with a check of an agent, taken together might reasonably have aroused suspicion of the motive which influenced the bankrupt to make the payment, but in the opinion of the court falls short of the probative weight in evidence which would warrant a finding that the defendant had reasonable cause to believe the bankrupt was insolvent when the payment on the note was made. “The plaintiff duly demanded that all books and accounts showing all transactions between the defendant and the bankrupt be produced at the trial, and duly asked for them at the trial. The plaintiff also summoned the man who was assistant treasurer of the defendant bank at the time of the payment, but not in the employ of the defendant at the time of trial, ordering him by a duces tecum to bring with him all books and accounts as above. The plaintiff showed also, that he had attempted to summon the man who was treasurer of the defendant corporation at said time, and was unable to do so, because he was ill. No books or accounts were produced. The assistant treasurer testified that he had made no effort to procure them, nor, so far as he knew, had any one else, and that they were in the vault of the Tremont Trust Company at Boston.” The failure of the defendant to produce its books and accounts when summoned by a subpoena duces tecum conferred authority on the court to compel that production by proper process, and authorized the plaintiff to introduce paroi [150] evidence of the contents of such books and records. Bull v. Loveland, 10 Pick. 9, 14. Bemis v. Charles, 1 Met. 440, 443. Kincaide v. Cavanagh, 198 Mass. 34. A like result follows upon the failure of a party at the trial to produce on reasonable demand writings which are material to the issue. The failure to produce documents on demand at a trial or on the subpoena duces tecum, is not in itself evidence of the alleged contents of such documents. Exceptions overruled.